IMPORTANT POINTS
When the decision of the High Court between the same parties and under same contract that respondent constitute a consortium and have to make their claim as such and not as claimant 1 and claimant 2 and it has attained finality; it is not open to one partner of the consortium to contend that it is a foreign company and covered by Section 2(1)(f)(ii).
This is a case of un-incorporated “association” referred to in Section 2(1)(f)(iii) and not Section 2(1)(f)(ii) dealing with independent foreign entity.
Indian company being lead partner having determining voice and office of the Consortium being in Mumbai; central management and control of this Consortium being exercised in India and not in any foreign nation; there is no case for “international commercial arbitration” as defined under Section 2(1)(f). Application u/s 11 is not maintainable.

JUDGMENT :

R.F. Nariman, J.

1. The present petition, under Section 11 of the Arbitration & Conciliation Act, 1996, (in short ‘the Act’), that has been filed before this Court, arises out of a contract entered into on 09.01.2009 for the work of planning, design, development, construction, manufacture, supply, testing and commissioning of a Monorail system in two particular earmarked sections in Wadala, Mumbai including operation and maintenance for a period of three years from the date of start of commercial operations. This agreement contains an arbitration clause, which is set out hereunder:-

“Claims, Disputes and Arbitration

20.1 Contractor’s Claim	If the Contractor considers himself to be entitled to any extension of the Time for Completion and/or any additional payment, under any Clause of these Conditions for otherwise in connection with the Contract, the Contractor shall give notice to the Employer/Employer’s Representative, describing the event or circumstance giving rise to the claim. The notice shall be given as soon as practicable, and not later than 30 days after the Contractor became aware, or should have become aware, of the event or circumstance. If the Contractor fails to give notice of a claim within such period of 30 days, the Time for Completion shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer/Employer’s Representative shall be discharged from all liability in connection with the claim. Otherwise, the following provisions of this Sub-Clause shall apply. The Contractor shall also submit any other notices which are required by the Contract, and supporting particulars for the claim, all as relevant to such event or circumstance. The Contractor shall keep such contemporary records as may be necessary to substantiate any claim, either on the Site or at another location acceptable to the Employer/Employer’s Representative. Without admitting liability, the Employer/Employer’s Representative may, after receiving any notice under this Sub-Clause, monitor the record-keeping and/or instruct the Contractor to keep further contemporary records. The Contractor shall permit the Employer/Employer’s Representative to inspect all these records, and shall (if instructed) submit copies to the Employer/Employer’s Representative. Within 45 days after the Contractor became aware (or should have become aware) of the event or circumstances giving rise to the claim, or within such other period as may be proposed by the Contractor and approved by the Employer/Employer’s Representative, the contractor shall send to the Employer/Employer’s Representative a fully detailed claim which includes full supporting particulars of the basis of the claim and of the extension of time and/or additional payment claimed. If the event or circumstance giving rise to the claim has a continuing effect: (a) this fully detailed claim shall be considered as interim; (b) the Contractor shall send further interim claims at monthly intervals, giving the accumulated delay and/or amount claimed, and such further particulars as the Employer may reasonably require; and (c) the Contractor shall send a final claim within 30 days after the end of the effects resulting from the event or circumstance, or within such other period as may be proposed by the Contractor and approved by the Employer/Employer’s Representative. Within 45 days after receiving a claim or any further particulars supporting a previous claim, or within such other period as may be proposed by the Employer/Employer’s Representative and approved by the Contractor, the employer shall respond with approval, or with